The U.S. Senate took a major step toward repealing the Affordable Care Act last week, by voting to approve a budget blueprint that will allow them to essentially dismember the law without the threat of a Democratic filibuster. Meanwhile, in California, the Supreme Court continued the state’s trend toward increasing employee rights and protections. For employers, and those of us who spend our days advising them, this sums up what the next four years will likely look like. The Federal government will roll back employee friendly laws, and revert to a more employer friendly stance, while states California, Massachusetts, New York, New Jersey, and Illinois will continue to ramp up employee protections. It is a brave new world, and one where compliance just got a whole lot more challenging, particularly for employers operating in multiple states.
In California, where the rule for some time has been that employers may not generally require employees to remain on duty or on-call during meal breaks, the California Supreme Court recently issued a new decision, Augustus v. ABM Security Services, Inc., confirming that employers have the same obligations regarding rest breaks as they do regarding meal periods: employees must be relieved of all duties and employers must relinquish all control.
In reaching its decision, the California Supreme Court held: “[O]ne cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.” The Court expressed concern that employees would need to stay close to the employer’s premises during their rest breaks; and combined with the affirmative duty to be “on-call,” it was sufficient to establish employer control.
Although the Supreme Court holding does not preclude employers from reasonably rescheduling rest periods when needed, or requesting an exemption from the Division of Labor Standards Enforcement (DLSE), the Court was clear that placing an employee on call during a rest period is not permissible.
Although the Court’s decision is in line with language in applicable IWC Wage Orders, the Labor Code, and prior holdings, it is a good reminder to employers to evaluate their rest break practices to ensure compliance. Employers should review their handbooks and policies to ensure they do not require employees to stay on premises or at a certain location, or to carry cell phones or pagers, or perform any duties whatsoever during breaks. It is common for employers in states outside of California to require employees to remain at or near the premises during rest breaks. It is important that provisions like these be amended for employees in California.